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Oregon Claims Copyright in Its Statutes -- Well, Sort Of

Submitted by Sam Bayard on Thu, 04/17/2008 - 12:04

Just last week, I was ruminating
on the viability of state claims of copyright in government records. At
the time, I was pretty confident that a state wouldn't be crazy enough
to claim copyright in its own statutes, both because caselaw suggests
this would be legally invalid and because it would be shoddy public
policy. Now, the Legislative Counsel Committee of the State of Oregon has sent a cease-and-desist letter to Justia, a free online resource for judicial decisions and statutes, claiming that Justia's posting of the Oregon Revised Statutes violates its copyright. The Committee's claim is not as outlandish as it initially sounds, but it is still quite problematic.

the arrangement and subject-matter compilation of
Oregon statutory law, the prefatory and explanatory notes, the
leadlines and numbering for each statutory section, the tables, index
and annotations and such other incidents as are the work product of the
Committee in the compilation and publication of Oregon law.

It's hard to evaluate how much original material the Committe might have added to the Revised Statutes
without an in-depth comparison of the finished product with the raw
output of the state legislature. But, off the top of my head, it looks
extremely suspect to claim rights in the overall organizational
structure and the numbering for each statutory section. First of all, the arrangement of statutory sections based on subject matter created by the legislature and numbering them one after the other probably does not rise to the (admittedly low) level of originality required for copyright protection. Moreover, recognizing the
state's copyright in these features would effectively allow it to
bootstrap a monopoly on the underlying statutory text. Sure, courts have recognized
that compilers generally can protect the "arrangement and display" of
unprotectible materials, but I can't see how anyone could publish an
intelligible competing version of the Oregon statutes without relying
on the officially recognized structure and section numbers. This is the
law, after all. You can't just make up section numbers and put the
titles, chapters, and individual sections together in some fanciful new
way. That would defeat the whole purpose of giving the public access to
statutes so that it might "know the law." Nash v. Lathrop, 5 N.E. 559,
560 (Mass. 1886).

Oddly, Carl Malamud of public.resource.org, another online source of free caselaw and statutes, has preemptively entered the fray. He wrote
to the Committee on April 13, indicating that Justia had shared its
cease-and-desist letter with him and notifying it that he had disabled
the public's access to the Oregon Revised Statutes on his site. He followed up
on April 15, notifying the Committee of various technical deficiencies
in the version of the statutes publicly available on the Legislative
Assembly's website. In general, I'm a big fan of Mr. Malamud and his
projects, but I think his letters in this case muddy the waters by
bringing up a host of issues unrelated to the Committee's copyright
claim and by exagerrating the nature of those claims (e.g., the April
13 letter says that the C&D claims that "these state statutes are
state secrets," which it emphatically does not).

Subject Area:

Comments

"State secrets" was perhaps overly hyperbolic. ;) But, we felt it important to note the important issue, which is that most of the copyright claims are less about protection about creative work than they are about coming up with a laundry list of reasons the Legislative Counsel to put a private wrapper around a public package.

Didn't mean to muddy the waters, but many states practice this kind of FUD and it has had a real chilling effect on those trying to compile collections of statutes or otherwise add value to this very basic information comprising the rules of our society.

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